2009-259, Collden Corporation v. Town of Wolfeboro

The petitioner, Collden Corporation (Collden), appeals an

brief and orally), for the respondent. Mitchell Municipal Group, P.A., of Laconia (Judith E. Whitelaw on the

orally), for the petitioner. Orr & Reno, P.A., of Concord (Michael D. Ramsdell on the brief and to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. COLLDEN CORPORATION

No. 2009-259 editorial errors in order that corrections may be made before the opinion goes Strafford Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as before Collden may seek review [before the court].” The court noted: p. 2 allow the planning board to review an application describing Collden’s plans municipal estoppel claim because Collden may seek relief in a fashion that will

planning board agreed could continue to be finished and sold. completed before the rights expired under the agreement, and which the pertained to anything other than phase one, which was substantially 2

contends that the thirty-day appeal requirement of RSA 677:15, I, does not

followed. new application to the planning board, and “therefore decline[d] to address the

actions Wolfeboro took after 2000 with regard to [the subdivision]

come to an agreement permitting continued construction of the subdivision. Collden argues that the court erroneously dismissed its claims. Collden

the court lacked jurisdiction over Collden’s claims. The court denied Collden’s motion to reconsider, and this appeal reasoned that Collden could seek review of the 2004 decision by submitting a Collden’s rights to complete [the subdivision] have expired.” The court estoppel claim was essentially “an appeal of the planning board’s decision that

decision within thirty days. There is nothing before the court that would suggest that any of the under RSA 677:15, I, because Collden did not appeal the 2004 planning board The court reasoned that it lacked “subject matter jurisdiction to hear the case” expired. Following the 2004 decision, Collden and the town were unable to

dismiss and for summary judgment, arguing that, pursuant to RSA 677:15, I, prohibiting Collden from completing the subdivision. The town moved to that the town was barred under the doctrine of municipal estoppel from The court rejected Collden’s municipal estoppel claim, finding that the judgment action in superior court,

On February 11, 2009, the court granted the town’s motion to dismiss. meeting, the board determined that its approval for the subdivision had the remaining subdivision phases.” At the June 14, 2004 planning board town engineer and town planner indicating its “intent to begin construction on

declaration that it had a vested right to build the subdivision, or, alternatively,

Over three years later, in December 2007, Collden filed a declaratory

amended its zoning regulations. On May 20, 2004, Collden sent a letter to the Collden completed phase one in July 2000. In 2000 and 2003, the town

to 2000. agreed to extend the deadline by which Collden had to complete improvements to exempt the subdivision from changes to its regulations. The town later subdivision was to be completed in several phases. In return, the town agreed p. 3 RSA 21:35.

board voted to approve or disapprove the application, in accordance with beginning with the date following the date upon which the planning 676:5, III. The 30-day time period shall be counted in calendar days

board decisions appealable to the board of adjustment pursuant to RSA

decision was actually filed. This paragraph shall not apply to planning

amend the petition within 30 days after the date on which the written the vote pursuant to RSA 676:3, II, the petitioner shall have the right to taken, including the written decision, were not filed within 144 hours of

petitioner shows that the minutes of the meeting at which such vote was

approve or disapprove the application; provided however, that if the the court within 30 days after the date upon which the board voted to claimed to be illegal or unreasonable. Such petition shall be presented to

statutory time requirements for appeals of planning board decisions to the 610, 613 (2006). “New Hampshire law requires strict compliance with a planning board decision.” Prop. Portfolio Group v. Town of Derry, 154 N.H. RSA 677:15, I, “provides the jurisdictional deadline for superior court review of

reasonably susceptible of a construction that would permit recovery.” whole or in part and specifying the grounds upon which the same is

claims, they were untimely under RSA 508:4.

light most favorable to [the petitioner].”

reviewing a motion to dismiss,” we consider “whether the allegations are verified, setting forth that such decision is illegal or unreasonable in a plat or subdivision may present to the superior court a petition, duly Any persons aggrieved by any decision of the planning board concerning

RSA 677:15, I (2008) provides: 677:15, I; and (3) even if we find that RSA 677:15, I, does not apply to Collden’s petition “against the applicable law.” Id. I; (2) we should not create an exception to the time requirements of RSA Id. We then test the facts in the subject matter jurisdiction because Collden failed to comply with RSA 677:15, [petitioner]’s pleadings to be true and construe all reasonable inferences in the Sch. Admin. Unit # 33, 158 N.H. 723, 727 (2009). “We assume the

We first consider whether RSA 677:15, I, applies to Collden’s claims. “In

I. Applicability of RSA 677:15, I

The town counters that: (1) the trial court correctly ruled that it lacked

the project. subdivision, and contends that the town’s conduct affected all five phases of estoppel claim from its claim that it has a vested right to complete its of plat or subdivision applications. Collden attempts to distinguish its apply to its claims because that statute governs only approvals or disapprovals disapproval of an application within the scope of RSA 677:15, I.” from RSA 677:15, I. p. 4 conditions subsequent are met is a decision regarding the approval or board after approval such that the planning board’s decision regarding whether

board’s 2004 decision was a final decision subject to the time restrictions of

make little sense to exempt the 2004 planning board decision in this instance of RSA 677:15, I. As planning boards make a variety of decisions, it would not yet considered “whether an application continues to be before the planning approving or disapproving applications, from the thirty-day appeal requirement

language of RSA 677:15, I, and our case law, and hold that the planning Indeed, the first sentence of RSA 677:15, I, provides that anyone “aggrieved by authority to require applicant to provide security under certain circumstances). to revoke prior subdivision approval); RSA 674:36, III (planning board’s

and the 2004 decision was a final decision. The town concedes that we have legislature intended to exempt all planning board decisions, save those There is no indication from the plain language of RSA 677:15, I, that the

See DHB, 152 N.H. at 318; Prop. Portfolio, 154 N.H. at 613. town, also relying upon

We conclude that Collden’s argument is inconsistent with the plain

purpose and avoid an absurd or unjust result.” (quotation omitted)).

applies because the planning board had already accepted Collden’s application, purpose sought to be advanced by the statutory scheme.” Planning Board, 120 N.H. 388, 389 (1980), contends that RSA 677:15, I,

because the planning board had already approved its application in 1993. The application” in RSA 677:15, I, contending that the statute is inapplicable Collden highlights the language “voted to approve or disapprove the Relying upon DHB v. Town of Pembroke, 152 N.H. 314, 318 (2005), legislative intent.” and unambiguous, we need not look beyond [it] for further indications of 488 (2007) (“We construe all parts of a statute together to effectuate its overall Residents Defending Their Homes v. Lone Pine Hunter’s Club, 155 N.H. 486, Co. v. Eckman Construction, 159 N.H. __, __ (decided January 28, 2010); see

legislature’s intent and . . . interpret statutory language in light of the policy or within the context of the statute as a whole,” so that we may “better discern the omitted). “Additionally, we do not consider words and phrases in isolation, but to include.” Appeal of Astro Spectacular, 138 N.H. 298, 300 (1994) (quotation language of the legislation nor add words which the lawmakers did not see fit

2009) (brackets and quotation omitted). “When a statute’s language is plain words used.” Appeal of Garrison Place, 159 N.H. __, __ (decided December 16, statute and where possible, we ascribe the plain and ordinary meanings to When construing a statute, “we first examine the language found in the

establishing jurisdiction [there].” Id. (citation omitted). superior court . . . because statutory compliance is a necessary prerequisite to the zoning board appeals context.

p. 5 challenges to the validity of zoning ordinances from analogous restrictions in administrative discretion.” Collden relies on our exemption for certain more complex than a “mere challenge[ ] to the planning board’s exercise of

from its claim that it has a vested right to complete the subdivision, as it is

exception to the statute in the planning board appeals context.

estoppel claim, and maintains that the estoppel claim is sufficiently different

677:15, I, and that Collden has failed to demonstrate why we should adopt an

RSA 677:15, I, in the manner that Collden suggests. overall purpose and avoid an absurd or unjust result,” we decline to interpret decisions. Given that we construe statutes in a manner to “effectuate [their] superior court review of a planning board decision,” and our law “requires As noted above, RSA 677:15, I, “provides the jurisdictional deadline for estoppel claim. Collden contends that RSA 677:15, I, does not apply to its efficiency”); that the municipal estoppel claim is subject to the time limitations of RSA Winchester Zoning Bd. of Adjustment, 157 N.H. 710 (2008). The town counters

appeals to the superior court.

impede finality for those whose interests are affected by planning board

Next, Collden argues that the court erroneously dismissed its municipal

administrative expertise, preserving agency autonomy and promoting judicial II. Municipal Estoppel

Their Homes, 155 N.H. at 488.

finality for those whose interests are affected by such decisions, and speedy

nearly seventeen years ago. Collden’s interpretation of the statute would board matters”). We note that Collden first obtained subdivision approval J., dissenting) (noting that town citizens “are entitled to finality in planning time limitations of RSA 677:15, I, under prior version of statute). K & J Assoc. v. City of Lebanon, 142 N.H. 331, 336 (1997) (Horton,

requirement “based on the reasonable policies of encouraging the exercise of board was a final decision “entitl[ing] [the petitioner] to review.” Hersh, 157 N.H. 72, 74 (2008) (policy behind administrative exhaustion hearing under this section priority on the court calendar”); McNamara v.

RSA 677:15 provides for deference to the decisions of local land use bodies, requirement of RSA 677:15, I, is consistent with the purpose of the statute. Our determination that the 2004 decision triggered the thirty-day appeal

(holding that constitutional objections to property dispositions were subject to at 319; see also Town of Auburn v. McEvoy, 131 N.H. 383, 387-88 (1988)

planning board decision that forecloses further proceedings before the planning approved or disapproved the application at issue, and determined that a that RSA 677:15, I, did not apply because the planning board had not appeal to the superior court. (Emphasis added.) Moreover, in DHB, we held any decision of the planning board concerning a plat or subdivision” may parties’ remaining arguments.

p. 6 677:15, I, as outlined above. Given this result, we need not address the after the planning board’s decision would circumvent the purposes of RSA under these facts, to permit Collden to bring its estoppel claim over three years

rights to complete [the subdivision] have expired.” We agree. Accordingly,

claim is essentially “an appeal of the planning board’s decision that Collden’s

decline to do so here. The trial court found that Collden’s municipal estoppel BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred.

challenges to planning board decisions. Affirmed.

board decision was subject to thirty-day time limitation of RSA 677:15, I). We McEvoy, 131 N.H. at 385 (holding that constitutional challenge to planning

available to plaintiff”). However, we have never expanded this line of cases to judicial rather than administrative treatment and no other adequate remedy is administrative remedies “where . . . the question is one particularly suited to 112 N.H. 261, 262 (1972) (declining to apply rule requiring exhaustion of (quoting Blue Jay Realty Trust, 132 N.H. at 509); see also Olson v. Litchfield, administrative remedies need not always be exhausted.’” Id. (brackets omitted) law rather than a question of the exercise of administrative discretion, (1989)). This is because “‘when the issue in an appeal involves a question of omitted) (citing Blue Jay Realty Trust v. City of Franklin, 132 N.H. 502, 509 the applicable statutory appeal period.” Id. at 616 (quotation and brackets to challenge the validity of a zoning ordinance may do so after the expiration of have held that a plaintiff who chooses to initiate a declaratory judgment action strict compliance” with that deadline. Prop. Portfolio, 154 N.H. at 613. “We